03 January 2012

With the stroke of Obama’s pen, the United States military has become a domestic law enforcement authority and American citizens on American soil are subject to the loss of every fundamental right to due process of law.

At this turn of the standard solar calendar from the year 2011 to the year 2012, my country has taken another step down the terrible path of abandoning its dedication to the principles that made it stand out with unique brilliance in the history of the human race.On December 31, 2011, President Barack Obama signed the National Defense Authorization Act for Fiscal Year 2012 (NDAA). Such bills are normally routine authorization and appropriation acts. This one is different. Known as the “Homeland Battlefield Bill” this act contains a section that aims a dagger at the heart of our most cherished constitutional freedoms.

Section 1031 includes the following language:

(a) In General – Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.——(c) Disposition under law of war – The disposition of a person under the law of war as described in subsection (a) may include the following:(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for the Use of Military Force.”

Translation: a “covered person” may be treated as a prisoner of war.

Prisoners of war don’t get trials. They don’t get to call lawyers. They don’t get hearings to determine probable cause. They don’t get to make bail. They don’t get to apply for writs of habeas corpus.

They have no rights to any components of due process of law. They are simply detained until the war between their country and the other country is over. (Recent world history is full of brutal atrocities illegally committed against prisoners of war, but that is a different topic for a different essay.)

These are standard expectations for enemy soldiers captured in war. So what’s new?

Under this bill, every square inch of the 50 states of the United States is considered a battlefield, and American citizens suspected of supporting the so-called enemy army of terrorists may be treated as prisoners of war. With the stroke of Obama’s pen, the United States military has become a domestic law enforcement authority and American citizens on American soil are subject to the loss of every fundamental right to due process of law.

It might be a different thing if the “war on terrorism” were a war with identifiable armies and soldiers, fought by nation-states, with identifiable targets and objectives. Indeed, the standard first definition of war, according to the Merriam-Webster Dictionary, is “a state of usually open and declared armed hostile conflict between states or nations."

But this so-called war is, as Rep. Dennis Kucinich calls it, a “war without end." It is not a conflict with a nation-state. It is a conflict with criminal gangs. There is no territory or capital city that can be occupied in a visible manifestation of victory. There will be no end until the politicians decide they no longer need it as a scapegoat to distract voters from the piracy they are suffering every day at the hands of the Wall Street robber barons and their politician stooges.

In other words, it may never end. Persons detained “under the law of war without trial until the end of the hostilities” may never be released.

As Senator Al Franken said in explaining why he voted against the bill:

And what we are talking about here is that Americans could be subjected to life imprisonment without ever being charged, tried, or convicted of a crime, without ever having an opportunity to prove their innocence to a judge or a jury of their peers. And without the government ever having to prove their guilt beyond a reasonable doubt.

Franken continued that the bill

denigrates the very foundations of this country. It denigrates the Bill of Rights. It denigrates what our Founders intended when they created a civilian, non-military justice system for trying and punishing people for crimes committed on U.S. soil. Our Founders were fearful of the military -- and they purposely created a system of checks and balances to ensure we did not become a country under military rule. This bill undermines that core principle.

A “covered person” under the bill is:

(b)(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.(b)(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

Well, you might think, no problem. This law only targets the bad guys. Innocent citizens are not in any danger of “disposition under the law of war."

But the whole point of due process of law, the whole point of the English nobles who forced King John to sign the Magna Charta in 1215, the whole point of our fundamental concept that a person accused of a crime is innocent until proven guilty, the whole point of the requirements of probable cause and warrants, the whole point of the right to a fair trial, the whole point of the right to call a lawyer, the whole point of being able to apply to a court for a writ of habeas corpus, is that there are checks and balances to prevent false accusations, false arrests, false convictions, and false imprisonment.

Under the power that has been handed over to the federal government in the new Defense Authorization Act, the checks and balances, the very essence of Constitutional democracy, will be abolished for any American at any time against whom the government decides to level a charge of supporting terrorists. The accusation may be a complete fabrication but there will be nothing the accused citizen can do about it.

The unprincipled politicians who passed this bill occupy both major political parties. Many Democrats in the House and Senate supported it, and a few Democrats opposed it. Many Republicans in the House and Senate supported it, and a few Republicans opposed it.

The apologists for the bill will point to subsection (e), which states:

Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.

Don’t be fooled by this hollow exercise of political pacification. If you are locked up in a military jail as a prisoner of war with no right to call a lawyer and no right to a hearing or to see the evidence against you, how will you invoke the purported “existing law” this sop extends to you? The same people who locked you up will decide what the “existing law and authorities” are and what they mean. Without due process of law or checks and balances, the “law” is nothing.

Basically, the Homeland Battlefield Bill subjects all Americans to the awful possibility of being treated the way thousands of innocent Japanese-American citizens were treated during World War II, their freedoms abolished through internment in camps for the duration of the war.

Remember John Yoo and Alberto Gonzales? Basically, the Congress in passing this bill, and the President in signing it, rehabilitated the sick and subversive constitutional theories that Yoo and Gonzales promoted during the darkest days of the Cheney-Bush regime.

The apologists may also say that under the U.S. Supreme Court decision in Hamdi v. Rumsfeld the federal courts will recognize a right of access to the judiciary to challenge military detentions. Speaking as a lawyer, I agree it is possible that may happen in the federal courts. Also speaking as a lawyer, I remind the apologists that it takes courageous lawyers, piles of money, and years of languishing to get major constitutional cases resolved in the courts.

I am glad for the possibility of judicial correction, but it does not excuse the politicians for what they have done, nor will any successful court challenge give a citizen back the years of freedom lost waiting for the fulfillment of judicial review. Speaking as an American who loves my country and its Constitutional heritage, I am appalled, disgusted, sick at heart, and mad as hell.

[David Van Os is a populist Texas democrat and a civil rights attorney now living in Austin. He is a former candidate for Attorney General of Texas and for the Texas Supreme Court. To receive his Notes of a Texas Patriot -- circulated whenever he gets the urge (and published on The Rag Blog whenever we get the urge) -- contact him at david@texas-patriot.com. Read more articles by David Van Os on The Rag Blog.]

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